in the united states district court for the western ... · jose angel sanchez, defendant. ) ) ) ) )...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOSE ANGEL SANCHEZ,

Defendant.

)

)

)

)

) 18-cr-20031-JTF-tmp

)

)

)

)

REPORT AND RECOMMENDATION

Before the court by order of reference is defendant Jose A.

Sanchez’s Motion to Suppress, filed on April 12, 2018. (ECF

Nos. 19, 24.) The government filed a response on May 1, 2018,

and Sanchez replied on May 9, 2018. (ECF Nos. 25, 28.) For the

reasons below, it is recommended that Sanchez’s Motion to

Suppress be denied.

I. PROPOSED FINDINGS OF FACT

At the suppression hearing, the court heard from one

witness, Agent Preston Hill of the West Tennessee Drug Task

Force, and received into evidence seven exhibits, including a

dashboard camera recording and a recording of the interior of

the police vehicle during the traffic stop. The following

proposed findings of fact are based on Agent Hill’s testimony

and the evidence presented at the hearing.

Case 2:18-cr-20031-JTF Document 33 Filed 07/11/18 of 16 PageID 50

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On March 7, 2017, Agent Hill was driving eastbound on

Interstate 40 in Fayette County, Tennessee, conducting

interstate interdiction. He did not have another law

enforcement officer with him but was instead accompanied by his

certified narcotics detection canine. At approximately 5:11

p.m., Agent Hill observed a number of cars traveling in the

right lane at a slower than typical rate of speed for interstate

traffic. Using the left lane, he pulled his vehicle up to the

front of the car line to determine the cause of the delay. He

saw a blue Chevrolet Silverado pickup truck traveling at

approximately fifty to fifty-five miles per hour in a zone where

the speed limit was sixty-five miles per hour. Agent Hill

transitioned to the right lane behind the truck and discovered

he could not read the entire Texas registration plate on the

back of the truck because a trailer ball hitch was blocking the

middle number. As depicted in the dashboard recording and a

photograph of the registration plate, a bumper-mounted towing

ball was located directly in front of the registration plate and

nearly touching it. In order to read the obscured number, Agent

Hill had to move back into the left lane and pull up beside the

truck. After ascertaining the number, Agent Hill returned to a

position behind the truck in the right lane. At this point, the

truck briefly veered across the painted fog line, bumped against

the rumble strip, and then resumed a proper course on the road


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between the road lines. Shortly after this occurrence, Agent

Hill activated his recording equipment. For approximately two

miles, Agent Hill followed the truck with no further incident.

The recording shows that, while Agent Hill was following the

truck, two vehicles used the left lane to pass Agent Hill’s

vehicle and the truck. As the truck was attempting to leave the

interstate via Exit 25, Agent Hill initiated a traffic stop.

While still sitting in his vehicle, Agent Hill observed that the

truck’s spare tire was not mounted properly and had hand prints

on it.

Agent Hill approached the passenger’s side of the truck and

asked the driver, later identified as Jose A. Sanchez, for

permission to open the door. After opening the passenger door,

Agent Hill asked Sanchez for his license, and Sanchez handed him

a Texas identification card. Agent Hill asked Sanchez, “No

license?” to which Sanchez responded, “No, Sir.” Agent Hill

then explained that he pulled Sanchez over because he could not

read his registration plate and because Sanchez had crossed the

fog line. Agent Hill asked Sanchez where he was going, and

Sanchez (whose speech patterns demonstrated that English was not

his first language) explained that he was traveling to Nashville

to see a doctor regarding his cancer. Agent Hill asked where

Sanchez was coming from, and Sanchez responded, “One, two, three

days I thinks.” Upon hearing the question a second time,


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Sanchez stated he was traveling from Houston, Texas. He

explained that he did not have a doctor in Nashville but was

traveling there to look for one. At this point, Agent Hill

interrupted him to make sure Sanchez could communicate

comfortably, having observed that each time Sanchez spoke he had

to press his thumb to his throat and that his voice was raspy.

Sanchez said he was “okay” talking. Sanchez further explained,

“I looking for one. Just, I have an appointment every day,

Houston, and somebody say me he got a good doctor Nashville.

That’s why I’m going.” He could not give Agent Hill further

information about the doctor’s location. Agent Hill asked for

the truck’s paperwork.

Agent Hill testified that he then obtained consent from

Sanchez to search the truck while Sanchez looked for the

paperwork. The dashboard recording shows that Agent Hill told

Sanchez, “Give me just one second, okay. I want to look at

something, okay. Is that okay?” to which Sanchez responded,

“Yes.” Agent Hill proceeded to inspect the truck for

approximately ninety seconds. He shined a flashlight on the

rear of the truck, crouched down, and examined the spare tire.

Then he walked around to the side of the truck and radioed to

another police officer to “come on down.” He testified that,

when he said this, he intended for the officer to come to his

location and deploy a narcotics canine around the truck. After


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radioing the other officer, Agent Hill got down on his knees,

crawled partway under the truck, and examined the undercarriage

with his flashlight in several locations. Once he was finished

with this inspection, Agent Hill went back to the passenger side

of the truck and asked Sanchez to come with him while he looked

at his paperwork. Sanchez stated that he had a Mexican license.

Agent Hill escorted Sanchez to his patrol vehicle and

placed him in the front passenger seat. As depicted by the

recording of the interior of the vehicle, the two of them sat in

the vehicle while Agent Hill wrote a warning ticket. In the

meantime, another officer arrived on the scene with a narcotics

canine and ran the canine around the truck. The canine gave a

positive alert, indicating that there was an odor of illegal

narcotics coming from the vehicle. After the canine alerted,

Agent Hill and other members of law enforcement searched the

vehicle. Behind the weather stripping in the headliner, the

officers found five packages of cocaine weighing a total of

approximately eleven pounds. Sanchez was later indicted for

possession of cocaine with intent to distribute in violation of

21 U.S.C. § 841.

II. PROPOSED CONCLUSIONS OF LAW

The Fourth Amendment provides, in part, that “[t]he right

of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not


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be violated[.]” U.S. Const. amend. IV. This protection from

unreasonable search and seizure “extend[s] to brief

investigatory stops of persons or vehicles that fall short of

traditional arrest.” United States v. Johnson, 702 F. App'x

349, 355 (6th Cir. 2017) (quoting United States v. Arvizu, 534

U.S. 266, 273 (2002)). The constitutionality of such a stop is

evaluated by a two-step analysis: first, there must be a proper

basis for the stop, United States v. Collazo, 818 F.3d 247, 253–

54 (6th Cir. 2016); second, the investigation must “address[]

the infraction [that] is the purpose of the stop, [and] may

‘last no longer than is necessary to effectuate th[at]

purpose.’” Rodriguez v. United States, 135 S. Ct. 1609, 1614

(2015) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)

(plurality opinion)).

The Sixth Circuit differentiates between ongoing and

completed violations when assessing whether an officer lawfully

stopped a vehicle. See United States v. Warfield, No. 17-3930,

2018 WL 1778555, at *2 (6th Cir. Apr. 13, 2018). Typically, the

Sixth Circuit requires that law enforcement officers have

reasonable suspicion to stop a vehicle for ongoing criminal

activity but have probable cause to stop a vehicle for a civil

infraction or a completed misdemeanor. Id.; see also Collazo,

818 F.3d at 253–54 (noting that the Sixth Circuit has only

stated in dicta that it required probable cause for a stop based


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upon a completed misdemeanor (citing United States v. Simpson,

520 F.3d 531, 541 (6th Cir. 2008))).

The government points to three lawful bases for the traffic

stop: the speed at which Sanchez was driving, the fact that

Sanchez veered across the fog line, and the obstructed view of

Sanchez’s registration plate.

A. Speed of Vehicle as Basis for Stop

While the government concedes that that speeding was not

one of Agent Hill’s reasons for stopping the truck, the

government claims that, because courts are not to consider the

subjective intent of the officer, the slow speed of the vehicle

is still an objectively valid basis for justifying the stop.

Sanchez argues that the court should not consider whether the

alleged violation was a valid basis for the stop because the

government may not engage in after-the-fact justifications and

cites United States v. Hughes, 606 F.3d 311 (6th Cir. 2010), to

support his argument. While the Hughes court barred “after-the-

fact justifications,” the court clarified that this meant the

government could “not begin poring through state and local

traffic ordinances looking for any that a suspect might have

violated.” Id. at 314–16. In Hughes, the Sixth Circuit

explicitly stated that if an officer knows sufficient facts at

the time of a stop “to believe that [the defendant] was

violating one of the traffic ordinances or statutes raised by


-8-

the government before the district court, then it simply does

not matter whether [the officer] intended to stop [the

defendant] on the basis of that traffic violation.” Id. at 316–

17. Accordingly, because Agent Hill was aware of Sanchez’s rate

of speed, the court will examine whether Agent Hill had a lawful

basis to stop Sanchez for driving too slowly.

Tennessee Code Annotated § 55-8-154(a) provides that “[n]o

person shall drive a motor vehicle at such a slow speed as to

impede the normal and reasonable movement of traffic, except

when reduced speed is necessary for safe operation or in

compliance with law.” The Tennessee Supreme Court has

identified several factors for courts to consider when

determining whether a driver violated the statute by impeding

the flow traffic, including “how slow the driver's automobile

was traveling, the posted maximum speed limit, the posted

minimum speed limit, if any, the effect on traffic, the duration

of the effect on traffic, and the normal and reasonable flow of

traffic in that area,” as well as “whether other traffic could

safely pass the slow-moving automobile in the right lane.”

State v. Hannah, 259 S.W.3d 716, 722–23 (Tenn. 2008). A

violation of this statute is a Class C misdemeanor. T.C.A. §

55-8-154(d). Because a violation of this statute is a completed

misdemeanor, the government must show Agent Hill had probable

cause to believe that Sanchez violated this law. See United


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States v. Hutton, No. 3:12-00215, 2013 WL 3976628, at *5 (M.D.

Tenn. Aug. 2, 2013).

Regarding the first three of the Hannah factors, the

difference of ten to fifteen miles per hour between Sanchez’s

speed and the posted speed limit is not, on its own, evidence of

a violation. See Warfield, 2018 WL 1778555, at *4 (noting, when

interpreting an Ohio statute that is similar to T.C.A. § 55-8-

154(a), that “[t]he law does not require a driver to travel at

exactly the posted speed limit”). Nor, when taken in

consideration with the other Hannah factors, was the speed of

Sanchez’s truck slow enough to impede traffic. Although some

traffic had built up behind Sanchez’s truck, the evidence shows

his rate of speed was not an obstacle to the flow of traffic

because Agent Hill and at least two other vehicles were able to

accelerate and pass the slower vehicles using the left lane.

Thus, the court finds that Agent Hill lacked probable cause to

stop Sanchez for violating T.C.A. § 55-8-154(a).

B. Veering of Vehicle as Basis for Stop

Tennessee Code Annotated § 55-8-123(1) requires that “[a]

vehicle shall be driven as nearly as practicable entirely within

a single lane and shall not be moved from that lane until the

driver has first ascertained that the movement can be made with

safety.” The Tennessee Supreme Court has held that “‘as nearly

as practicable’ means that a motorist must not leave her lane of


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travel any more than is made necessary by the circumstance

requiring the lane excursion.” State v. Smith, 484 S.W.3d 393,

409 (Tenn. 2016). Lane excursions resulting from outside

forces, such as “high velocity wind gusts” or obstructions in

the road, would not violate this statute, whereas other lane

excursions resulting from impermissible causes, such as

impairment, would. Id. at 404, 409–10. A violation of this

statute is a Class C misdemeanor. See T.C.A. § 55-1-103.

Because a violation of this statute is a completed misdemeanor,

the government must show that Agent Hill had probable cause to

believe Sanchez violated this law. See United States v. Braden,

No. 2:11-CR-20192-JPM, 2012 WL 3552851, at *6 (W.D. Tenn. Aug.

16, 2012).

Because Sanchez’s lane excursion was isolated and brief,

Agent Hill did not have probable cause to stop the truck on this

ground. See United States v. Gross, 550 F.3d 578, 583 (6th Cir.

2008) (finding that there was not probable cause to stop a

vehicle that straddled two lanes for a few seconds when

traveling up a steep hill); United States v. Freeman, 209 F.3d

464, 466 (6th Cir. 2000) (“We cannot, however, agree that one

isolated incident of a large motor home partially weaving into

the emergency lane for a few feet and an instant in time

constitutes a failure to keep the vehicle within a single lane

‘as nearly as practicable.’” (quoting T.C.A. § 55-8-123(1))).


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Therefore, the court finds that Agent Hill lacked probable cause

to stop Sanchez for violating T.C.A. § 55-8-123(1).

C. Obstruction of Registration Plate as Basis for Stop

Tennessee Code Annotated § 55-4-110(b)1 requires the

following:

Every registration plate shall at all times be

securely fastened in a horizontal position to the

vehicle for which it is issued so to prevent the plate

from swinging and at a height of not less than twelve

inches (12″) from the ground, measuring from the

bottom of the plate, in a place and position to be

clearly visible and shall be maintained free from

foreign materials and in a condition to be clearly

legible . . . . No tinted materials may be placed over

a license plate even if the information upon the

license plate is not concealed.

These requirements apply to in-state and out-of-state

registration plates. See Simpson, 520 F.3d at 535–38. Although

the Tennessee Supreme Court has yet to interpret this statute,

Tennessee appellate courts have upheld traffic stops where the

registration information on the plate was obscured from view.

See State v. Ochoa, No. M2011-02400-CCA-R3CD, 2012 WL 6082476,

at *8 (Tenn. Crim. App. Dec. 7, 2012) (finding that there was

reasonable suspicion to stop a vehicle when a clear plastic

covering over the temporary registration tag “obscured the

writing on the tag”); State v. Martin, No. M2011-02296-CCA-R3CD,

1Effective July 1, 2018, Tennessee has amended the numbering of

the statute cited in T.C.A. § 55-4-110(a). 2018 Tennessee Laws

Pub. Ch. 1023 (S.B. 2693). The amendment has no impact on this

case.


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2012 WL 1895795, at *1, *4 (Tenn. Crim. App. May 24, 2012)

(finding that there was an “equipment violation” when law

enforcement could not read a registration plate “because it had

oil and dirt on it”). But see State v. Anderson, No. M2004-

00735-CCA-R3CD, 2005 WL 292430, at *1, *4 (Tenn. Crim. App. Feb.

8, 2005) (finding that there was not a violation of the statute

where the name of “the issuing county was partially obscured”

but “no part of the plate appear[ed] to have been illegible”).

Because a violation of T.C.A. § 55-4-110(b) is considered an

ongoing criminal offense, an officer need only possess

reasonable suspicion that a vehicle’s registration plate

violates the statute before stopping the vehicle. See Simpson,

520 F.3d at 542.

Sanchez argues that the position of the trailer ball hitch

did not violate the statute because Agent Hill was ultimately

able to read the obscured number once he moved into the left

lane. To support his argument, Sanchez points to United States

v. Simpson, 520 F.3d at 544, observing that in Simpson the court

rejected a district court’s overbroad interpretation of T.C.A. §

55-4-110(b) that treated any obstruction of the visibility of

the registration plate as a violation. Contrary to Sanchez’s

argument, Simpson does not address the issue at hand, which is

whether the statute is violated when a registration plate is


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visible from certain angles but not from a position behind the

vehicle.

The court finds particularly instructive the Supreme Court

of Michigan’s decision in People v. Dunbar. 499 Mich. 60

(2016). At the time of the Dunbar decision, Michigan’s statute

governing the display of registration plates, Michigan Compiled

Law § 257.225(2), was in all relevant parts identical to T.C.A.

§ 55-4-110(b). In Dunbar, sheriff deputies stopped the

defendant for violating M.C.L. § 257.225(2)2 after they decided

to perform a random check of the defendant’s pickup truck’s

registration and discovered that they could not read his full

registration plate because a bumper-mounted towing ball

obstructed the middle number of his truck’s registration plate.

Id. at 63–64. The officers approached the defendant’s truck,

and the smell of marijuana coming from the vehicle alerted them

to the possibility that he was transporting illegal narcotics.

Id. Upon searching the truck, they found marijuana, cocaine,

and a handgun. Id. The Supreme Court of Michigan held that the

stop was lawful because the location of the defendant’s bumper-

mounted towing ball violated M.C.L. § 257.225(2). Id. The

2In 2018, Michigan’s legislature amended M.C.L. § 257.225(2) by

adding the following language: “The attachment to the rear of a

vehicle of a tow ball, bicycle rack, removable hitch, or any

other device designed to carry an object on the rear of a

vehicle, including the object being carried, does not violate

this subsection.” 2018 Mich. Legis. Serv. P.A. 147 (H.B. 5100).


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Court highlighted the significance of the language in M.C.L. §

257.225(2) that states the plate “shall be attached . . . in a

place and position which is clearly visible.” Id. at 68. It

interpreted this language to mean “that the location where the

plate is attached — and after attachment the plate itself — can

be viewed without obstruction.” Id. (footnotes omitted). The

Court acknowledged that the holding might impact the use of

common “items such as trailer hitches and bicycle racks.” Id.

at 71–73. However, it noted that its interpretation “advance[d]

public safety by permitting witnesses to a hit-and-run motor-

vehicle accident or police officers engaged in the investigation

of criminal flight to observe the registration information of a

fleeing vehicle.” Id. at 68 n.7.

Like the defendant in Dunbar, Sanchez was stopped for

driving a truck with a bumper-mounted towing ball that

obstructed the middle number on his registration plate. Even

though Agent Hill was ultimately able to read the registration

plate, the location of the trailer ball hitch rendered the

plate’s “place and position” not clearly visible. See id. at

68–72; Lamb v. Bailey, No. 516CV00123TBRLLK, 2017 WL 2798519, at

*3 (W.D. Ky. June 28, 2017) (finding that a license plate was

not clearly visible when a trailer hitch obstructed a police


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officer’s view of the plate).3 Accordingly, the court finds

that, because the trailer ball hitch abutted the truck’s

registration plate and prevented Agent Hill from reading the

middle number as he drove behind the truck, Agent Hill had a

reasonable suspicion that Sanchez was violating T.C.A. § 55-4-

110(b).4

III. RECOMMENDATION

For the foregoing reasons, it is recommended that Sanchez’s

Motion to Suppress be denied.

Respectfully submitted,

s/ Tu M. Pham

TU M. PHAM

United States Magistrate Judge

3In United States v. Ratcliff, No. 1:06-CR-55, 2006 WL 2771014,

*5 (E.D. Tenn. Sept. 25, 2006), the court held that law

enforcement had probable cause to stop a defendant for violating

T.C.A. § 55-4-110(b) when the location of the defendant’s

trailer hitch obscured a number on the registration plate

because “any invisibility or obstruction to visibility of any

portion of the tag could constitute a violation of the statute,

even if such invisibility or obstruction to visibility is

temporary — or even momentary — and may be easily cured.”

However, it is unclear whether the analysis in Ratcliff still

stands in light of the Sixth Circuit’s holding in Simpson. See

Simpson, 520 F.3d at 544.

4As for the second step of the analysis of a stop, the scope of

the stop, in Sanchez’s motion, he states that “since the second

part of the analysis is conditioned upon satisfaction of the

first part of the analysis, the second part of the inquiry is

not reached.” (ECF No. 19 at 5.) At the suppression hearing,

Sanchez’s argument focused entirely on the first step. Because

Sanchez does not challenge the constitutionality of the scope of

the stop, the court does not reach this issue.


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July 11, 2018

Date

NOTICE

WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS

REPORT AND RECOMMENDED DISPOSITION, ANY PARTY MAY SERVE AND FILE

SPECIFIC WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND

RECOMMENDATIONS. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN

(14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND

FURTHER APPEAL.


in the united states district court for the western ... · jose angel sanchez, defendant. ) ) ) ) )...

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